The right of intervention under the African Union's Constitutive Act: From non-interference to non-intervention

31-12-2003 Article, International Review of the Red Cross, No. 852, by Ben Kioko

In a revolutionary article the Constitutive Act of the African Union provides for the right of the Union, in cases of war crimes, genocide and crimes against humanity, to intervene in a Member State. The author examines the article’s historical background and the principal objectives and underlying motivations of this major exception to the principle of territorial sovereignty, as well as foreseeable practical, legal and procedural difficulties in its future implementation.

Ben KiokoThe author is Legal Adviser to the African Union. The views expressed in this article are entirely those of the author and do not reflect the views of the African Union.

Abstract

The continent of Africa has been witness to some of the worst instances of mass war crimes, crimes against humanity and instances of genocide often perpetrated in the context of internal conflicts. These atrocities for the most part continued while the international community remained silent or inactive. As a response to this situation, Article 4 of the Constitutive Act of the African Union of 11 July 2000 provides for the right of the Union, in cases of war crimes, genocide and crimes against humanity, to intervene in the territory of a Member State and for the right of a Member State to request such intervention. This is the first international treaty to contain such a right. The provision stands in contrast to traditional notions of the principle of non-interference and non-intervention in the territorial integrity of nation States.

This article examines the right of intervention in the framework of the African Union. The author looks at the historical background of how this provision made its way into the Act and the principal obj ectives and motivations underlying this major exception to the principle of territorial sovereignty. In addition, the implementation of this provision together with its foreseeable practical, legal and procedural difficulties are analysed. The parameters of the right of intervention in international law are reviewed in order to assess the legal merit of Article 4 of the Act, as are the political aspects impacting upon the doctrinal debate.

It is argued that while implementation of the right of intervention will most probably be fraught with problems, the provision nonetheless underlines the fundamental values underpinning the African Union and the serious measures that Member States are willing to undertake in order to guarantee these basic protections to every person living in Africa.